2009 - Obtaining An Order of Protection
HOW TO OBTAIN AN ORDER OF PROTECTION
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If you or someone you know is a victim of domestic violence, an Order of Protection issued by the court can provide safety from harassment or abuse, according to the Illinois Judges Association (IJA).
“An Order of Protection can help protect a victim from further violence,” says Hon. Robert Anderson, the Presiding Judge in the Domestic Relations Division of the Circuit Court of DuPage County. “It is essentially a piece of paper that carries a big stick. As judges, we try to scrutinize each request to ensure that we are making the right decision in granting the Order.”
Domestic violence includes a number of crimes: assault or threats of assault; battery or physically injuring someone without a weapon; and coercion or sing force to compel someone to engage in conduct against their will. Harassment, sexual assault, unlawful imprisonment, stalking and even destruction of property may also constitute domestic violence. A spouse is not the only person who can be a victim of domestic violence. According to the Illinois Domestic Violence Act, it can be a former spouse, someone you live or lived with, a blood relative or same-sex partner.
An Order of Protection is composed of 17 specific “remedies,” which either prohibits or proscribes certain conduct by the abuser. “The remedies order the abuser to stop the abuse, to stay away from your home, your workplace and your family, and direct the person to have no contact with you – including no phone calls, letters, e-mails, voice mails, birthday cards, and the like,” states Hon. Martha Mills, a judge in the Circuit Court of Cook County’s Family Law Division. “An order can also award temporary custody of children, award child and spousal support, and order the abuser to give up any firearms.”
Orders of Protection can be filed in civil or criminal court. If obtained in civil court, normally no criminal charges will be filed. In order to file in criminal court, however, the victim must be willing to file criminal charges and testify against the abuser, to have the order granted.
There are two types of Orders of Protection: an ex parte emergency order and a plenary order. In an emergency order, a judge grants the order based solely on evidence and testimony by the petitioner, without holding a contested hearing or obtaining the abuser’s knowledge or consent. This order will be in effect until a court hearing can be held, within 14-21 days of filing your petition. A plenary order is issued after a full hearing with both parties present. The civil plenary order protects the victim for a period up to two years.
If you need to obtain an Order of Protection and do not have a lawyer, there are several steps you should take.
• Most circuits throughout the state provide an Order of Protection form on-line, but you can also obtain one at the courthouse in the county where you reside.
• If you wish to file criminal charges or the abuser has already been arrested and you want to obtain an Order of Protection, you must speak to your local State’s Attorney’s Office.
• If you wish to obtain an Order of Protection in civil court, find the civil court clerk and request a petition for an emergency Order of Protection.
• Fill out the petition carefully and be specific. Include details and dates of the abuse, if possible, advises Judge Mills.
• Do not sign the petition until you have shown it to a clerk because the form may have to be “notarized” (signed in the presence of court personnel).
• After a judge reviews your petition, a decision will be issued based on whether you need immediate protection. “Orders of Protection are frequently granted, although each case depends on its particular facts,” says Judge Anderson.
• Once you receive the order, you’ll need to return to court for a hearing. Respond to the court’s Notice of Hearing, which indicates the date when you must return. You must attend this proceeding. If you do not, the judge will dismiss your case. The abuser also will be served by the sheriff’s office with a Notice of Hearing.
• Be prepared for the hearing where you will tell your story. You’ll need evidence, such as witnesses, to prove your statements about the incident.
• If you are the recipient of an Order of Protection, review the document before leaving the courthouse. Keep it with you at all times.
There is no filing fee to obtain an Order of Protection; however, the court may order the “respondent” (the abuser) to pay certain costs such as counseling, replacement of damaged items, and so forth.
If the abuser violates the order, even if you think it is minor, immediately call the police or sheriff. Some violations constitute a Class A misdemeanor which carries a punishment of up to 364 days in jail. All other remedies are enforced through contempt of court proceedings.
If a petitioner requests a modification or extension of a current Order of Protection, the petitioner should, in criminal court, notify the local State’s Attorney’s Office and in civil court, file the appropriate motion with the clerk’s office.
The Illinois Judges Association, formed in 1971, provides continuing legal education to members of the judiciary and education to the public on matters related to the justice system. The IJA is headquartered at 321 S. Plymouth Court, Chicago, IL 60604-3997.
NOTE: This information does not constitute legal advice.